Thursday, February 26, 2009

One More Word on Justice de Grey

Having on Monday sent off to law reviews the paper on Chief Justice de Grey and his judicial self-education that I blogged about earlier, I now get to relish receiving rejection emails for the next four months. While I wait, I wanted to comment on one last element of the paper that I came to in the final round of revisions and which significantly altered the focus of the paper. To recap briefly, the paper arose from a fortuitous find in de Grey's archives of evidence of the books he bought and used to teach himself how to be a judge upon being named Chief Justice of Common Pleas in 1771. As a means to try to make better sense of what I was looking at, I went in search of modern scholarship on judicial education. There is almost none. It is as if the fact that judges don't come to the bench pre-prepared is this great secret that no one particularly wants to disturb. But interestingly, what little scholarship there is suggests that judges today use the same basic mechanisms of self-education that judges used in the 18th century--reading books, conferring with colleagues, learning on the fly in the courtroom, and relying on prior training. I spoke to a couple district court judges and they recognized completely the methods of training that de Grey appeared to have used. I suppose this should not be terribly surprising, since there are a finite number of ways a new judge could learn his or her job. What is rather interesting, however, is that despite the fact that judges have not come to the bench trained for over two hundred years, and, I argue in the paper, probably not since some time in the sixteenth century, common law systems still cling to this myth that our judges take the bench knowing what they are doing. The insistence of this assumption has changed somewhat in the last 50 years with the advent of baby judges schools at both the state and federal levels, but those are often voluntary and limited in the scope of the training they can offer. I do not comment on whether our system is better or worse than a civil law system in which judges are trained. I note merely that this is an issue that both legal historian and modern scholars have largely passed over and perhaps it deserves further study.

1 comment:

Maybe the reason there has been so little change in how judges are educated is because we got things pretty close to right letting judges -- all of whom already have at least some formal education (at least today) -- self-educate when they take the bench. If independence is a cardinal virtue on the bench, then perhaps we should be cautious about any formal "educational" institution that purports to teach judges how to be judges.